The Reprieve Drone Strike Communication I — Jurisdiction

by Kevin Jon Heller

Reprieve, the excellent British human-rights organisation, has submitted a communication to the ICC asking it to investigate NATO personnel involved in CIA drone strikes in Pakistan. Here is Reprieve’s press release:

It has been revealed in recent months that the UK, Germany, Australia, and other NATO partners support US drone strikes through intelligence-sharing. Because all these countries are signatories to the Rome Statute, they fall under The ICC’s jurisdiction and can therefore be investigated for war crimes. Kareem Khan – whose civilian brother and son were killed in a 2009 drone strike – is at The Hague with his lawyers from the human rights charity Reprieve and the Foundation for Fundamental Rights who have filed the complaint on his behalf.

The CIA has launched more than 300 missiles at North Waziristan since its covert drone programme began and it is estimated that between 2004 and 2013, thousands of people have been killed, many of them civilians including children.

The US has immunised itself from legal accountability over drone strikes and the UK has closed its domestic courts to foreign drone victims. In a recent decision, the Court of Appeal in London ruled that it would not opine on the legality of British agents’ involvement in the US drone war in Pakistan, for fear of causing embarrassment to its closest ally.

The communication is a fascinating document to read, and it is quite damning concerning the effects of the CIA’s drone strikes. My interest in the communication, however, focuses on two critical legal issues: (1) whether the ICC would have jurisdiction over NATO personnel involved in the CIA’s strikes; and (2) whether it can be persuasively argued that those personnel have been complicit in the strikes. I’ll discuss the jurisdictional issue in this post and the substantive complicity issue in my next post.

As the communication acknowledges, neither Pakistan (where the drone strikes took place) nor the US (which launched the drone strikes) has ratified the Rome Statute. Reprieve nevertheless asserts that the ICC would have jurisdiction over NATO personnel involved in the drone strikes — particularly individuals from the UK, Germany, and Australia — on two different grounds (para. 7):

The Court’s jurisdiction over the crimes committed as a result of drone strikes in Pakistan arises in two ways. The first is (subjective) territorial jurisdiction on grounds that the attacks were launched from a State Party (e.g. Afghanistan), while the second is nationality (on grounds that there is a reasonable basis for concluding that the nationals of States Parties to the Rome Statute may have participated in crimes under the Statute.

It may seem odd that the communication spends time trying to establish that Art. 12(2)(a) of the Rome Statute, the territorial jurisdiction provision, includes subjective territoriality. Why not just invoke nationality jurisdiction, given that Reprieve is only asking the ICC to investigate “nationals of States Parties”? In fact, the communication’s move is actually quite clever — and necessary.

To see why, consider what Art. 25(3) says, in relevant part (emphasis mine): “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…” The italicized language is critical, because the communication does not claim that the NATO personnel committed the war crimes themselves. On the contrary, Reprieve views those individuals as accessories to war crimes allegedly committed by CIA drone operators (para. 13; emphasis mine):

Article 25 sets out the circumstances in which individuals can incur criminal responsibility under the Statute, expressly recognizing different forms of secondary liability for crimes under international law including aiding and abetting a crime, ordering, soliciting or inducing a crime and joint criminal enterprise. There is, of course, no basis under the Statute to interpret Article 12(2)(a) as requiring that each and every element of the conduct comprising the crime must be committed within the territory of a State Party. Many crimes will involve conduct occurring partly in the territory of a State Party and partly outside it. Were liability to be precluded by reason of this perpetrators of many crimes would readily avoid the jurisdiction of the Court. Such an interpretation would fatally undermine the entire concept of individual criminal responsibility set out in Article 25 of the Statute and is therefore unsustainable.

There is actually no joint criminal enterprise in the Rome Statute — just co-perpetration, which is a form of principal liability, and contributing to a group crime, which is a form of accessorial (secondary) liability. The point, though, is this: the modes of participation specified in Art. 25(3)(b)-(d) are not crimes in themselves; they are mechanisms for holding accessories responsible for the crimes of others. Even if nationals of States Parties have been complicit in war crimes committed by CIA drone operators, therefore, that does not mean “a crime within the jurisdiction of the Court” has been committed. Indeed, if the principal perpetrators of the war crimes in question are exclusively American, no crime within the Court’s jurisdiction has been committed — the Court does not have jurisdiction over acts that are committed by nationals of a non-State Party on the territory of a non-State Party, even acts that otherwise qualify as war crimes.

The communication’s emphasis on subjective territoriality, then, is anything but superfluous. On the contrary, the Court must have subjective territorial jurisdiction over the CIA’s alleged war crimes, because otherwise it is impossible to argue that an element of those war crimes was committed on the territory of a State Party. Only the NATO personnel’s acts of complicity would have been. And if no element of the CIA’s alleged war crimes was committed on the territory of a State Party, no crimes within the jurisdiction of the Court have been committed, making it impossible for the Court to prosecute the NATO personnel for being complicit in those crimes. No jurisdiction over primary liabiilty, no jurisdiction over secondary liability. It’s that simple.

So does the subjective territoriality argument work? I’m not so sure, because the argument depends on two interrelated assumptions that are anything but self-evident. The first, of course, is that Art. 12(2)(a) of the Rome Statute adopts both subjective and objective territorial jurisdiction. Here is what the communication says (paras. 12-13):

Further, the terms of the Statute itself support this interpretation of the territorial jurisdiction conferred upon the Court. Under Article 12 (2) (a) of the Rome Statute provides that the Court may exercise jurisdiction where “[t]he State on the territory of which the conduct in question occurred” is a State Party to the Statute. According to Article 31 of the Vienna Convention on the Law of Treaties “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. As regards the text of Article 12 (2) (a), there is no stipulation that all of the conduct must occur within the State Party to the Statute.

The context is also instructive. As part of the “context” of Article 12 (2) (a), the
other provisions of the Statute must be taken into account. Article 25 sets out
the circumstances in which individuals can incur criminal responsibility under the
Statute, expressly recognizing different forms of secondary liability for crimes under international law including aiding and abetting a crime, ordering, soliciting or inducing a crime and joint criminal enterprise. There is, of course, no basis under the Statute to interpret Article 12(2)(a) as requiring that each and every element of the conduct comprising the crime must be committed within the territory of a State Party. Many crimes will involve conduct occurring partly in the territory of a State Party and partly outside it. Were liability to be precluded by reason of this perpetrators of many crimes would readily avoid the jurisdiction of the Court. Such an interpretation would fatally undermine the entire concept of individual criminal responsibility set out in Article 25 of the Statute and is therefore unsustainable.

I’m not impressed by the argument that Art. 12(2)(a) has to include subjective territoriality because many bad guys will get away if it doesn’t. Such victim-centered teleological reasoning — to invoke Darryl Robinson’s expression — has no business in a serious legal argument. I’m also not sure it’s enough to say that the Rome Statute adopts subjective territoriality because it does not specifically rule it out. I doubt the drafters of Art. 12 ever discussed the issue. (Though I welcome corrections on that point.) That said, given how widely accepted subjective territoriality is among states — there might be some that reject it, but I couldn’t find any after a relatively extensive google search — it does make a certain amount of sense to assume that the ordinary meaning of “territorial jurisdiction” includes both objective and subjective territoriality.

So let’s give the communication its first assumption. The second necessary assumption, then, is that at least one element of the CIA’s alleged war crimes — basically, all the various war crimes in the Rome Statute involving attacks on civilians — took place on the territory of a State Party, thereby triggering the Court’s subjective territorial jurisdiction. Here is the communication on that point (paras. 8-9):

Although Pakistan is not a State Party to the Rome Statute, the Court has jurisdiction in respect of the drone strikes in Pakistan under Article 12 (2) (a) of the Statute, where attacks are launched from the territory of a State Party.

Publicly available and uncontested information demonstrates that drone strikes in Pakistan are now launched exclusively from either Jalalabad Air Base and/or Kandahar Airbase in Afghanistan, which has been a State Party to the Rome Statute since 10 February 2003 . Until 2011, the drones carrying out the strikes in Pakistan were launched from both Jalalabad Air Base in Afghanistan and Shamsi Air Base in Pakistan. US Air Force and Central Intelligence Agency (CIA) personnel on the ground in both of these locations would handle the launch and recovery phase of the drone’s flight path, while pilots based at Creech Air Force Base in Nevada would take over control of the weapon once it was airborne.

This is far too facile. There is no question that conduct relevant to the attacks in question took place in Afghanistan. But did an element of a crime take place there?That is much less clear. Here, for example, are the key elements of the actus reus of the war crime of attacking civilians, Art. 8(2)(e)(i) of the Rome Statute:

1. The perpetrator directed an attack.

2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.

The actus reus of this war crime consists of a conduct element (directing an attack) and a circumstance element (the object of attack qualifying as civilian). With a drone strike, the circumstance element obviously takes place in Pakistan, a non-State Party. So the question is whether the physical act of launching a drone, which took place in Afghanistan, a State Party, is part of the “directing an attack” conduct element.

There is no clear answer to that question. It is tempting to compare the drone situation to the classic subjective territoriality example, in which D fires a shot from Italy, hits V in France, and V dies in Switzerland. If that’s the correct comparison, the communication’s argument is in trouble, because in the drone situation the fatal shots are being fired from Pakistan, not from Afghanistan. It would be difficult to argue that Italy would have subjective territorial jurisdiction if D picked up the gun in Italy but did not shoot V until after he had walked into France — seemingly the more precise analogy.

The difficulty, of course, is that a drone is different from a gun in a critical respect — unlike a gun, a drone can (and must) be fired remotely. Or, put another way, a drone is a gun whose trigger is located in a different state. That’s important, because I think it means that firing a drone does, in fact, qualify as part of the conduct element of an attack on civilians. Which means, in turn, that the ICC would have jurisdiction over a drone strike in Pakistan that was directed by an operator physically located in Afghanistan.

But that argument alone does not save the communication. By its own admission, the drone strikes are being directed by operators in the US, not in Afghanistan. The drones are simply being launched from Afghanistan. Is launching also part of the conduct element of directing an attack? I’m dubious, because of the second gun analogy above. I think flying the drone into Pakistan is not materially different than carrying the gun into France. It is conduct relevant to the drone attack, but it is not part of the attack itself.

That said, I would not be surprised if the Court disagreed with me. After all, most common-law courts — and I’d be interested to know what civil-law courts do in these situations — take a flexible attitude toward the actus reus of a crime, refusing to chop a defendant’s conduct into discrete and unrelated temporal slices. In other words, I could easily see the ICC viewing the conduct involved in “directing an attack” as including everything from the launch of the drone to the firing of the rockets at civilian targets. If so, the communication’s argument would work: at least one element of the CIA’s alleged war crimes would have taken place in Afghanistan, a State Party, thereby permitting the Court to exercise subjective territorial jurisdiction over those war crimes.

The bottom line is this: the jurisdiction argument is far more complicated than Reprieve’s communication acknowledges. To have jurisdiction over the CIA’s alleged war crimes, the Court must be willing to hold (1) that Art. 12(2)(a) embraces both objective and subjective territoriality, and (2) that the act of launching a drone qualifies as part of the conduct element of “directing an attack.” There are plausible arguments for both (1) and (2) — but they are anything but a slam dunk.

“Consider what Art. 25(3) says, in relevant part (emphasis mine): “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…” The italicized language is critical, because the communication does not claim that the NATO personnel are co-perpetrators of the war crimes allegedly committed by CIA drone operators. […] The point, though, is this: the modes of participation specified in Art. 25 are not crimes in themselves; they are mechanisms for holding accessories responsible for the crimes of others. Even if nationals of States Parties have been complicit in war crimes committed by CIA drone operators, therefore, that does not mean “a crime within the jurisdiction of the Court” has been committed. Indeed, if the principal perpetrators of the war crimes in question are exclusively American, no crime within the Court’s jurisdiction has been committed — the Court does not have jurisdiction over acts that are committed by nationals of a non-State Party on the territory of a non-State Party, even acts that otherwise qualify as war crimes.”
I think you are conflating distinct principles of jurisdiction here, Prof. Heller, and I’m not convinced that the exercise of jurisdiction based on the nationality principle is tied in any way to role of the accused in the collective crime: i.e. whether he was a principal or an accessory. The crimes committed in Pakistan fall, prima facie, within the materialjurisdiction of the Court – this matter is established independently from the question of who and where, as is clear from Article 5 RS. Then, the question of whether the Court can exercise jurisdiction over these crimes is, as you point out, to be decided on the basis of Article 12. Setting aside its territoriality limb for a moment, this provision clearly states that “the Court may exercise its jurisdiction if… The State of which the person accused of the crime is a national.”. You might have had a point if Article 12(2)(b) said “the State of which the person who committed the crime is a national”, but frankly, that would have been nonsensical. Thus, while the Court might not exercise jurisdiction in this case over US nationals (unless we bring in the subjective territoriality principle, which pursuant to the PCIJ judgment in the Lotus Case has long been recognized as customary international law, and is therefore applicable in ICC proceedings) it may very well exercise jurisdiction over German and British nationals since they would completely satisfy the requirements of Article 12(2)(b). Only after all of this is established, should one look at the provisions of Article 25 (or Article 28 for that matter) and focus on the kind of responsibility that the accused might bear for the said crimes.

2.25.2014
at 5:05 am EST Lachezar

For the reasons I discuss in the post, I simply disagree. The responsibility of accessories is dependent upon them being complicit in a crime within the jurisdiction of the Court — not simply complicit in a crime. So derivative liability is not independently sufficient for responsibility.

As an aside, I completely disagree with the idea that because subjective territoriality is a customary principle, that means the Rome Statute automatically embraces it. But that’s an argument for a different day.

Let’s assume you are correct. Do you believe that the subsequent prosecution of, say, a German national would fail because, although there is jurisdiction over the German national’s act of complicity, he has not been complicit in a “crime within the jurisdiction of the Court,” as required by Art. 25? Or does his nationality bootstrap the underlying crime into the Court’s jurisdiction?

That the responsibility of the accessory is derived from that of the principal is a matter which, unless you profess the unitarian approach to liability like Italy or Austria, is absolutely correct. However, this has nothing to do with the principles governing the establishment of jurisdiction in the ICC, or for that matter in any criminal justice system that I should know of. I am Bulgarian and if I assist somebody in committing a crime in the Netherlands, Bulgarian authorities will have the power to prosecute me as long as that crime is also a crime within the Bulgarian Penal Code i.e. as long as it falls within our criminal jurisdiction. It does not matter that the crime was committed by a Dutch citizen on Dutch territory. I believe much the same rationale applies to the ICC and, indeed, to use your language, the German nationality will “bootstrap the underlying crimes into the Court’s jurisdiction”. Again, those are crimes listed in Articles 6-8 RS (so the Court has material jurisdiction over them) and the person who stands accused for them (might be as a perpetrator, might be as an accessory it does not matter at this point) is a national of a State Party, thus satisfying to the letter the jurisdictional requirement of Article 12(2)(b). If the temporal jurisdiction of the Court is also satisfied, then you have it all. Now, the principles of derivative liability (and the choice of strictly derivative vs partially derivative approach to liability) that you refer to might come into play at trial but it will raise challenges to the guilt of the accused, rather than ones pertaining to the Court’s jurisdiction.

As for the customary status of the subjective territoriality principle, I agree, this is a point of a different debate. I just want to point out, however, that even if we see Article 21 RS as establishing a hierarchy of the applicable sources of law, the fact that the Rome Statute is mute on the issue of the scope of the territoriality principle is a good enough reason for me to consult customary law on this point and apply it to the case.

2.25.2014
at 7:40 am EST Lachezar

A crime is not “within the jurisdiction of the Court” for purposes of Art. 25 (and by implication Art. 12) simply because it falls within the Court’s subject-matter jurisdiction. War crimes are committed all over the world that cannot be prosecuted by the Court. The crime in question must also be within the Court’s temporal jurisdiction and within either its territorial or personal jurisdiction. It is not enough, therefore, to say that the accessory to a crime is a national of a state party, because modes of secondary liability are not crimes; they are mechanisms to connect individuals to crimes they did not personally commit. As a result, to find an accessory liable for a “crime within the jurisdiction of the Court,” the accessory’s acts are irrelevant — we must find either nationality or personal jurisdiction over the principal perpetrator’s crime, since that is the only potential crime within the Court’s jurisdiction. And asking whether that’s possible with regard to the drone strikes is the entire point of my post.

“War crimes are committed all over the world that cannot be prosecuted by the Court. The crime in question must also be within the Court’s temporal jurisdiction and within either its territorial or personal jurisdiction.”

This just repeats what I already said above, so no difference of opinions here.

“It is not enough, therefore, to say that the accessory to a crime is a national of a state party, because modes of secondary liability are not crimes; they are mechanisms to connect individuals to crimes they did not personally commit.”
I’m not sure which part of my comment above got you thinking that I regard modes of liability as crimes, Prof. Heller. With all due respect, this sentence simply does not make any sense.

“As a result, to find an accessory liable for a “crime within the jurisdiction of the Court,” we must find either nationality or personal jurisdiction over the principal perpetrator’s crime.”

This is it, this is where our analyses on this point of law diverge. I ask you to name one (leading) criminal justice system in the world in which this argument makes sense. One system in which a domestic court will be barred from trying its national because the crime in which he participated was in fact physically committed abroad by a foreign national. In other words, in which a court can prosecute own nationals only if they committed the crime that took place abroad, rather than otherwise participate in it. Yes, the ICC is a separate legal system but if the drafters of the Rome Statute intended to introduce a novel limitation to the generally recognized principle of national jurisdiction, I firmly believe this would have been done clearly under Article 12(2)(b), which you refuse to read carefully. When article 25 RS speaks of a “crime within the jurisdiction of the Court” it is not establishing a new understanding of jurisdictional principles, it merely refers to those principles defining the Court’s jurisdiction under Articles 5, 11 and 12 RS. A mode of liability in itself can never be a consideration when establishing jurisdiction over a crime, to me it really is as simple as that.

2.25.2014
at 10:13 am EST Lachezar

It may be claimed that “the conduct in question” (e.g., aiding and abetting) also took place in the UK, Germany, Australia re: co-planning, intel, other support, etc.
It might be argued that “the crime” is in general of a type that the Court has jurisdiction over, e.g., war crimes covered in the Stat. — that such a crime is within the jurisd. of the Court.
Since one must interpret a treaty partly in view of its objects and purposes (here, some appear in the preamble) it is evident that at least to that extent a teleologic approach to interpretation is necessary.

2.25.2014
at 11:09 am EST Jordan

You claim that I continue to refuse to read Art. 12(2) carefully, yet you make no attempt to read Art. 25 carefully. Art. 25(3) provides that a person is “criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person… aids, abets or otherwise assists in its commission,” thereby distinguishing between the crime and the complicit act. Yet you continue to insist that the abetted crime is within the jurisdiction of the Court simply by virtue of the accessory being a national of a State Party. That makes no sense.

I think we’ve taken this debate as far as it can go. This will be my last comment.

p.s. Since art. 25(3)(c) does NOT refer to “the crime” but refers to “such a crime,” arguments about “the” crime may not be so sound. Further, Article 25(3)(c) must be interpreted with reference to the first part of Article 25(3)” “a person shall be criminally responsible … for a crime within the jurisdiction of the Court if that person” — SO, logically, a person who aids and abets “shall be criminally responsible … for a crime“!

2.25.2014
at 1:08 pm EST Jordan

p.s.p.s. Article 25(3)(d) looks like JCE III and I

2.25.2014
at 1:12 pm EST Jordan

Prof. Heller, I’ve had to read Article 25 RS quite a few times so far and I’m sure I’ll be reading it many more times for the next couple of years. I assure you that I’m well familiar with its content. What does not make any sense is that one would look at a provision dealing with modes of liability in order to define….the jurisdiction…of a Court, rather than look at the articles that specifically deal with the matter of the Court’s jurisdiction. It makes just as much sense as looking at the, say, grounds for excluding criminal liability under Article 31 to define over whom the ICC can exercise jurisdiction and over whom it cannot. Again, no criminal justice system that I know of limits the application of the principle of personal jurisdiction in the manner you suggest (i.e. by bringing in modes of liability) and I’m positive that the ICC is not introducing novel, groundbreaking, basic principles of law on this point, too!

However, since you are so much focused on the content of Article 25(3), let me join you in your confusion here. You are referring to the part where it says that a person is “criminally responsible for a crime within the jurisdiction of the court if” and here follows a list of the applicable modes of liability. Notice how the article says a “a crime within the jurisdiction of the court”, not “a crime committed within the jurisdiction of the Court”. Once again, the question of when a crime falls within the jurisdiction of the Court is determined on the basis of articles 5, 11 and 12! The modes of liability have nothing to do with it. What Article 25 reveals is, thus, that a person can be held liable for “aiding and abetting” a crime that falls within the jurisdiction of the court (again, as defined in Articles 5,11 and 12), or for inducing it etc. Obviously, in our example, the Court cannot have jurisdiction over those who committed the crime within the meaning of Article 25(3)(a) because these are people over whom the Court does not have neither personal, nor territorial jurisdiction. The point that one must distinguish between the crime and the modes of participating in it is absolutely correct but it is totally irrelevant to the jurisdictional debate that we are having here.

Finally, when you say that “insist[ing] that the abetted crime is within the jurisdiction of the Court simply by virtue of the accessory being a national of a State Party…makes no sense” you are practically saying, that to, the manner in which the criminal justice systems of the world have applied the principle of personal jurisdiction makes no sense. Yes, this is how they do it. Now, if you want to argue that we should devise a new way of thinking about this basic principle of criminal law, then that is a whole different story and we will enter into the realm of fantasy debates. If this, really, makes no sense to you (which at this point I really doubt is the case, I believe you are simply being stubborn now) then, yes, for the sake of avoiding further embarrassment I think we should stop here.

2.26.2014
at 4:29 am EST Lachezar

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